Negligent Infliction of Emotional Distress: Facebook Etiquette

I have recently become involved with the BLS Advocate. All readers should check out www.blsadvocate.org because they've got some pretty cool stuff up there (check out the classifieds). I proposed writing a weekly column entitled "Negligent Infliction of Emotional Distress" about the various distresses inflicted upon law students by third parties. At bottom, I guess, all of these columns could have the bottom line of determining if there were a tort cause of action against the third party. The topic this time is Facebook Etiquette. So, I guess, Facebook is the third party. Could they be liable for intentional infliction of emotional distress? No way-unless the circumstances were exceptional. But could they be liable for negligent infliction of emotional distress? Probably not - just because, as my little intro points out, it's a tough case to make as it is...

I had to edit this down to 750 words for the BLS Advocate, but I present it to here, in its unedited full, 2,916 word glory:

Negligent Infliction of Emotional Distress: Facebook Etiquette
By Christopher J. Knorps
DISCLAIMER:
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Restatement of Torts, Second, section 46: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.”
Comment d:
“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
“Almost all states have adopted the tort of intentional infliction of emotional distress, but only a minority of courts have been willing to recognize an independent cause of action for emotional distress alone against defendants who are no more than negligent. (Shapo, Principles of Tort Law, 3d ed., 381)

BY READING THIS COLUMN, YOU HEREBY AGREE TO FORFEIT ALL POSSIBLE CLAIMS AGAINST THE AUTHOR

Introductory Note to First Column

First of all, let me say, it’s good to be back. This is my first piece of journalism written in a school-sanctioned medium in more than eight years. I have missed the opportunity to make my voice heard, and while there may be plentiful amounts of my own writing at flyinghouses.blogspot.com, that website hardly registers in the national consciousness. This is not to say that the BLS Advocate registers in the national consciousness, but it is at least a resource that other students can use to recognize that they are not alone.

This column is entitled Negligent Infliction of Emotional Distress because it may cause that in the reader. To be sure, I have never shied away from writing about controversial topics, and I have often paid the price. I expect to get a fair amount of hate mail after every column I write – but my goal is to inspire thoughtful comments that can start a conversation about reasonable values that we can all share as law students. Given its ubiquity, I felt that facebook would be the best topic for my inaugural column.

The Incident Giving Rise to this Column

On February 1, 2012, I posted a two-and-a-half minute video that was recorded on February 1, 2004. This video was shot in my dorm room at the 13th St. residence hall of NYU. The video was shot very late in the evening and involved some eight people. I narrated that we had all gotten married. Many of us were drinking and/or smoking cigarettes. I was two-and-a-half months shy of my 21st birthday, and most of the people there were under 21. A close relative of mine was also there. I wrote, “Happy 8th Wedding Anniversary!” and included the names of the four people that I had been married to that evening. I posted this around 11:00 PM and went to bed.
Around 6:00 AM, my phone beeped twice – two text messages. Next, it started ringing. I let it go to voice-mail, heard that a voice-mail was left, heard the phone ring again, let it go to voice-mail again, heard that a voice-mail was left again, and finally got out of bed. I saw the texts were from my close relative. “Take it down,” was all I needed to see to know what was up. I powered the phone down. Then, consumed by guilt and unable to fall asleep, I turned on my computer, went to facebook, and untagged everyone from the video. Then I was able to fall back asleep.
But not for long. The first thing I did after waking up a couple hours later was to check my e-mail and facebook. I also listened to my voice-mails, found there were four, heard my close relative call me an “asshole” in one of them, heard my close relative’s significant other leave a message that was very measured and polite, and finally heard my close relative crying, apparently walking on her way to work, about the horrible thing I had done.
In an e-mail, another friend in the video sent me a polite explanation, saying that he was an employee of the federal government, and he had actually just had a meeting about these sorts of things, and how people should protect their reputation at all costs, most especially on facebook. His argument held more water to me – and I took it down. My close relative continued to text me. I told her she had little reason to fear disciplinary action. She said she didn’t fear disciplinary action, but she took my lack of concern to be an affront to the reputation that she had worked very hard to build and maintain as a 27-year-old female in her workplace. I wrote, relax, it’s gone. I wanted to add, you can take that stick out of your ass now, but did not want to cause any greater ire.

Perhaps it is worth noting that another person in the video, a PHD candidate, did not object whatsoever, but rather commented on it nostalgically, saying it was a perfect representation of her college experience.

Perhaps it is also worth noting that this same close relative saw what I had written on my younger sister’s facebook wall. My younger sister is seventeen years old. She is waiting to hear back from University of Chicago. She is very smart and will probably be very successful in her career, perhaps because I had to move back home in 2008, and lived with her for two years, and was able to give her a fair amount of good advice. But I digress. The controversial post was a joke, sort of. We had gotten into the habit of playing Mario Party 8 on Wii. For those unfamiliar, Mario Party 8 is a game where you can have up to four players. You pick a character (Mario, Luigi, Toad, Toadette, Yoshi, Peach, Boo, Daisy, Dry Bones, Wario, Waluigi, Hammer Bro, Birdo, or Blooper), you pick a board (Tycoon Town being one of my personal favorites—as the strategy involves investing coins in hotels and gaining equity that determines how many stars you are entitled to and carrying as little cash as possible, so that when you have zero coins and land on a red space, and are supposed to lose three coins, you lose nothing –we shout “discharge!” when that happens and it is fun for all), and you pick how many turns you will play. Each turn ends with a mini-game, which takes about two minutes or so. The goal of the game is to get as many stars as possible. It is one of the best games for a real party and if anyone has a copy and wants me to play I will gladly put off writing my paper for Employment Law a few hours longer and play as many turns as you like. Moving on…we had gotten into the habit of playing 50-turn-games of Mario Party 8 – my younger sister, my younger brother, and me. I wrote a message to the effect that, we were reserving the television on December 23, 2011 from 6 PM – 1 AM for two, back-to-back 50-turn games of Mario Party, and that I would supply the adderall. When my father returned from the airport with my close relative in tow, he took me aside into his office and said, “Take all that stuff down! Don’t you realize that it is a violation of federal law to hand out prescription drugs? You are seriously jeopardizing your career by putting up crap like that!”

This prompted a response on my status a couple days later, to the effect that, people should realize that what I write on facebook is not meant to be taken seriously. Approximately half of the time, I am joking. Before you judge me based on what I write, please ask me what I meant. Context is everything.

With that long preamble in mind, I will now address the role of facebook in the typical law student’s life.

History

Before there was facebook, there was Friendster, and before there was Friendster, there was myspace, and before there was myspace there was…..nothing? Hardly. Before myspace there were chat rooms and dating sites – social networking in its infancy – and perhaps another brief story (this one truly brief, I promise) will be illustrative.

It was 1996. We had just gotten America Online installed on our home computer. I had gone on chat rooms with other friends before, but now I could do it on my own. I thought I had to pick a cool name. I looked at my shoes. Nike. Nike is kind of cool, but too obvious. How about I substitute a D for the N, and add the year? Sounds great! So, Dike96 became my screen name. When my parents found out about this, they were quite upset. It prompted this conversation with my mother: “Mom, what does Dike mean?” (It is worth noting here that there are two definitions of the word—and actually, with the spelling I used, mine was the more innocent of the two—but the internet has never been a place where double entendres are ignored). “It’s a derogatory term for a female homosexual,” she said. My parents were quite concerned that I would go into chat rooms with such a screen name and become an inevitable target for online predators – arguably still something of an obscurity in those days. The screen name was deleted, and when I got my own computer in December 1997, I started going by jckchicago on AIM.

What does this story illustrate? I don’t know. I joined Friendster and myspace sometime in 2003, and I joined facebook in early 2004. I like to think of myself as something of an “original” member who has held fast through the years and changes, and who has never compromised his artistic integrity by censoring anything he has posted (with the exception of using ****** to fill in swear words). People tell me I’m hard to find on facebook. This helps me feel less vulnerable. That I have two different names, which is confusing, is another factor that helps me feel safer than others when posting questionable content.

Law School and Facebook

In law school, you will go to events held by the career services center. They will tell you take anything that is even the least bit questionable off of your wall, and out of your photos or videos. They will tell you that it is not worth it to risk losing what is probably the most important job search of your life by leaving up some stupid picture of coughing out an ocean of smoke after a massive bong rip. The picture may be funny – yes – but it will automatically disqualify you for consideration for any job – especially one where they require a drug test (note here: USPS interns are required to take a drug test – you’ve been warned). It is monumentally stupid to allow anything that could potentially result in a reputational compromise to be seen by anyone, especially those in charge of hiring at a firm.

But what if no one actually searches facebook to spy on your profile? What if they can’t see your profile unless you accept them as a friend? I think most people are aware they can change certain privacy settings to avoid these kinds of situations from happening at all.

Moreover, what if no one wants to search facebook for your profile? What if you’re not the sharpest tool in the NYC Legal Market and you’re not going to be considered for any jobs, period? Then, what’s the big deal? Is the NYPD or District Attorney’s office going to search your profile, see some picture that may be probable cause for a warrant for possession of marijuana, and bring formal charges against you? No! Is your goofy younger brother going to think a joke about taking amphetamines to have the fortitude to make it through 100 turns of Mario Party is funny? Yes!

Maybe it’s worth noting that my friend count on facebook used to match my LSAT score, and my weight (somewhere in the low-to-mid 160s) and is now, two years later, up to 433. Obviously, being in school when you are on facebook can have a huge impact on the number of friends you have. My younger brother and sister, for example, have over 800 (perhaps my sister has over 1,000). Do they really know all of these people? I don’t know. But one thing is certain: the more friends you have, and the better you are at expressing your love for them, the stronger your “intangible asset” will be as we wade through this technologically-driven age. But I digress.

This is my criteria for being a facebook friend: you have to have had a meaningful conversation with the person you seek to add.

That is the only rule I abide by. I do not refer to myself as Christopher John or Christopher Jack or John Jack or Jack Johnson or C. Jack or Chris K. or Jack K. I use my name as people know me. I do not fear the facebook police, and neither should you.

Privacy is within the “penumbra” of rights recognized in the Constitution by the Supreme Court, and while this privacy generally refers to sexual matters, it should one day be expanded to cover communications on facebook. Facebook has just gone public. There’s $5 billion in shares out there. Of course, it’s your choice what you put out there, but honestly – why are you on it?

You are on it because everyone else is on it. You have cell phones because everyone else has cell phones. You text constantly (and have an unlimited number per month) because everyone texts constantly. You share pictures of cute kittens and puppies because everyone shares pictures of cute kittens and puppies. You are on it because you want to keep up with the friends that you don’t see everyday, or to take the friendships with those you do see every day to another, more surreal level. But also, you are on it just to stay connected – to “network” if the need arises (and that need will arise, if you believe that recent trends in the employment schemata are here to stay). And you are probably on LinkedIn for the same reason, but probably realize that facebook is probably a stronger tool than LinkedIn.

Now, I am on LinkedIn, and I post almost nothing on my profile (I don’t even think I have a picture yet), but there, I will exude professionalism. I am professional enough on facebook. I list all the places I have worked and I have no shame about what I post, who I tag, what I comment, or what pictures I retain in my profile.

But that day, back in December, when I wrote that status about asking before you judge, I added a hash tag, as has been my practice in comments or status updates deserving of some further witticism. The hash tag on this day in particular was, #iamnevertalkingtoanyoneeveragain, which is what Kafka wrote in one of his journal entries. The problem is thus an existential one that goes to the very heart of colloquial conversation with a friend, or classroom commentary – anything I say may be subject to someone else hearing without my expressed consent – and my reputation is bound to suffer, one way or another. Better not to speak, better not to say anything, better to sit quietly in our rooms for all of eternity, never speaking a controversial word, never composing an inflammatory sentence, waiting, quietly, for the polite offer of a job.
Of course, that’s not the way it is. I know I’m crazy. I know you won’t listen to me. So go on, keep telling everyone you’re so happy in your relationship, that you just got engaged, that you just got married. Tell people to look at your wedding photos and have them comment about how absolutely beautiful you look. Wish people a happy birthday when facebook tells you to do so. When you have a baby, take many pictures and post them often, so friends can keep commenting about how cute they are. When you get accepted for a prestigious fellowship, announce it to the world, so that everyone can congratulate you.

However, never announce that awesome grade you got in Evidence – that would be rude. Also, never go on personal attacks – it is just tres declassee. Finally, preach your politics to the most obnoxious degree possible. Point out how dumb Gingrich, Santorum, and Perry are, and decry homophobia, racism, and all other morally reprehensible positions, so long as your views fall in line with the norms endorsed by your influential associates, colleagues, and peers. Never admit that the view opposite yours holds any water whatsoever. Follow these rules, and success will be yours.

Christopher J. Knorps is a 2L at Brooklyn Law School. He has written two novels, a book of short stories, and a memoir of his 10-month-stint in L.A. None of his creative writings have ever been published in print form. He enjoys studying bankruptcy law. He ranks in the upper 55% of his class. You may find his blog by visiting flyinghouses.blogspot.com. It consists primarily of book reviews, a dozen or so film and music reviews, a few pieces of sports journalism, and a light smattering of “special comments” about the study of law in 2010-2012.